Pickett v. Wadlow

⁵⁶⁵ Briscoe, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Carroll County, sitting in equity, and the questions for our consideration are presented by a demurrer to a bill in equity. The bill avers that the appellant on the nth day of July, 1889, executed a mortgage on certain lands situate in Carroll County to Elizabeth S. Shipley of Baltimore City, to secure the payment of a loan of $2,200 according to the terms of the mortgage; that on the 31st of August, 1891, J. Oliver Wad-low, the attorney and agent named in the mortgage, sold the lands under a default in the mortgage and purchased them at the mortgage sale ; subsequently .this sale was ratified by the Circuit Court for Carroll County; and on the 30th of December, 1891, the property was conveyed by deed to the purchaser. The bill further alleges that prior and at the time of the sale of the land under the mortgage, the appellant was indebted unto the appellee, Wadlow, in the sum of three hundred dollars, and that it was agreed between them that Wadlow, the attorney, should purchase the land at the sale for the amount of the mortgage debt, and the sum of three hundred dollars, and “ would then hold the lands and premises in trust and upon the condition that whenever the appellant should pay unto Wadlow the sum of the purchase-money paid by him for the lands and premises, together with the additional sum of $300, then Wadlow would convey by deed the same lands and premises to Jerusa Pickett, and in the meantime and until the payment of the sums of money, the said Jerusa Pickett should retain possession and occupancy of the lands and premises ; that in lieu of interest upon the sums of money payable to Wadlow, the plaintiff should pay unto him the one equal half of the sale price of all crops raised upon said lands, that this payment has always since the sale of the lands been made by Pickett unto Wadlow, and accepted by him.” The bill also charges that it was generally made known at the time of the sale that Wadlow was buying the property for the benefit and in trust for the appellant, and for this reason ⁵⁶⁶ all competition was prevented and he was thereby enabled to buy the land at a price much below its real value.

The bill also charges that the appellant has always been in actual possession of the property and since the mortgage sale, has continued the occupancy thereof by virtue of the agreement between her and the appellee, Wadlow, renewed and continued from year to year and time to time under the agreement. It further charges that in the year 1900 the appellant notified the appellee, Wadlow, of her purpose to pay the debt and redeem the land and he had acknowledged her right to redeem and had agreed to permit it to be done, in accordance with the agreement, but subsequently sold the lands to the appellee, Shull. It also alleges that an actual tender of the amount due to Wadlow had been made, and a refusal by him to carry out this agreement, and that the appellee, Shull, had full knowledge of the existing agreement before he paid the money and received the deed. The prayer of the bill is that the deed from Wadlow to Shull be declared null and void, and set aside and that the appellant be permitted to redeem the property according to the agreement between the parties and for an injunction to restrain the appellee, Shull, from exercising acts of ownership over the property or in any manner obstructing the appellant in the free use and occupation thereof.

It appears from the record that the application for an injunction was denied by the Court, on the fourth of February, 1901, and subsequently the appellees demurred to the bill, assigning among others the following reasons : First, that the plaintiff has not stated such a case as entitled her to the relief sought by the bill; Second, that the trust set up in the bill is not in writing; and Third, that the trust or agreement set up in the bill is not susceptible of specific performance. And from the order of the Court sustaining the demurrer and dismissing the bill of complaint, this appeal has been taken. The object of the bill, it appears from the foregoing